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Peaceful Settlement of Disputes G.J.C.M.P.,Vol.6(1):11-17 (January-February, 2017) ISSN: 2319 – 7285 PEACEFUL SETTLEMENT OF DISPUTES Abdualla Mohamed Hamza1,* Miomir Todorovic2 1 Union Nikola Tesla University, Department for Postgraduate Studies, Ph.D Candidate, Libya. 2Knez Mihaljeva Street, Belgrade, Serbia Abstract The purpose is to provide a general survey of the practice among States of the peaceful settlement of international disputes. There are variety of instruments for peaceful settlement, including negotiation, commissions of inquiry, Mediation, Conciliation and Good Offices. Care is taken to indicate the quantitative significance of the inter-State arbitration in relation to the use of standing international tribunals, such as the International Court of Justice. Key word: International law, peaceful settlement. Negotiation, mediation, inquiry, United Nation, Arbitration. 1. Introduction Historically, International Law has been regarded by the international community as a means to ensure the establishment and preservation of world peace and security. The maintenance of international peace and security has always been the major purpose of the International Law. It was the basic objective behind the creation of the League of Nations in 1919 and the United Nations in 1945. Since the direct cause of war and violence is always a dispute between States, it is therefore in the interest of peace and security that disputes should be settled. Methods and procedures for the peaceful (pacific) settlement of disputes have been made available in the International Law. States have concluded a great number of multilateral treaties aiming at the peaceful settlement of their disputes and differences. The most important treaties are the 1899 Hague Convention for the Pacific Settlement of International Disputes which was revised by the Second Hague Peace Conference in 1907, and the 1928 General Act for the Pacific Settlement of Disputes which was concluded under the auspices of the League of Nations. Furthermore, there are regional agreements, such as the 1948 American Treaty on Pacific Settlement, the 1957 European Convention for the Peaceful Settlement of Disputes, and the 1964 Protocol of the Commission of Mediation and Arbitration of the Organization of African Unity. In addition to such general treaties on dispute settlement, there are many bilateral and multilateral agreements which include specific clauses related to dispute settlement. The Charter of the United Nations devotes Chapter VI to the methods and procedures for the pacific settlement of disputes. Paragraph 1 of Article 33 of the Charter states the methods for the pacific settlement of disputes as the following: negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, and resort to regional agencies or arrangements. This paragraph obliges States parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, to seek a solution by any of the listed methods or other peaceful means of their own choice. The methods of peaceful settlement of disputes fall into three categories: diplomatic, adjudicative, and institutional methods. Diplomatic methods involve attempts to settle disputes either by the parties themselves or with the help of other entities. Adjudicative methods involve the settlement of disputes by tribunals, either judicial or arbitral. Institutional methods involve the resort to either the United Nations or regional organizations for settlement of disputes (Collier,J. 1999). 2. Diplomatic Methods of Dispute Settlement Diplomatic methods of dispute settlement are negotiation, enquiry, mediation, conciliation, and good offices. 2.1. Negotiation Negotiation is a method by which people settle differences. It is a process by which compromise or agreement is reached while avoiding argument and dispute. In any disagreement, individuals understandably aim to achieve the best possible outcome for their position (or perhaps an organization they represent). However, the principles of fairness, seeking mutual benefit and maintaining a relationship are the keys to a successful outcome. Specific forms of negotiation are used in many situations: international affairs, the legal system, government, industrial disputes or domestic relationships as examples. However, general negotiation skills can be learned and applied in a wide range of activities. Negotiation skills can be of great benefit in resolving any differences that arise between you and others. Negotiation is a flexible means of peaceful settlement of disputes in several respects. It can be applied to all kinds of disputes, whether political, legal or technical. Because, unlike the other means listed in Article 33 of the 11 G.J.C.M.P. Charter, it involves only the States parties to the dispute, those States can monitor all the phases of the process from its initiation to its conclusion and conduct it in the way they deem most appropriate. Another characteristic of negotiation highlighted by the Manila Declaration is effectiveness. Suffice it to say in this connection that in the reality of international life, negotiation, as one of the means of peaceful settlement of disputes, is most often resorted to by States for solving contentious issues and that, while it is not always successful, it does solve the majority of disputes (Gross, S,. 1988) . Negotiation is a dialogue between two or more people or parties intended to reach a beneficial outcome. This beneficial outcome can be for all of the parties involved, or just for one or some of them. It is aimed to resolve points of difference, to gain advantage for an individual or collective, or to craft outcomes to satisfy various interests (Buettner, R,. 2006) . It is often conducted by putting forward a position and making small concessions to achieve an agreement. The degree to which the negotiating parties trust each other to implement the negotiated solution is a major factor in determining whether negotiations are successful. Negotiation is not a zero-sum game; if there is no cooperation, the negotiation will fail. Everyone negotiates every day, often without even considering it a negotiation. Negotiation occurs in business, sales, non-profit organizations, government branches, legal proceedings, among nations, and in personal situations such as marriage, divorce, parenting, etc. The study of the subject is called negotiation theory. Professional negotiators are often specialized, such as union negotiators, leverage buyout negotiators, peace negotiator, or hostage negotiators. They may also work under other titles, such as diplomats, legislators, or brokers (Fisher, R,. 1984). 2.1.1. Enquiry One of the common obstacles preventing the successful settlement of a dispute by negotiation is the difficulty of ascertaining the facts which have given rise to the differences between the disputants. Most international disputes involve an inability or unwillingness of the parties to agree on points of facts. Herein lays the significance of the procedure of inquiry as a means of pacific settlement of disputes. Many bilateral agreements have been concluded under which fact-finding commissions have been set up for the task of reporting to the parties concerned on the disputed facts. In addition, the procedure of inquiry has found expression in treaties for the pacific settlement of disputes. The two Hague Conventions of 1899 and 1907 established commissions of inquiry as formal institutions for the pacific settlement of international disputes. They provided a permanent panel of names from which the parties could select the commissioners. The task of a commission of inquiry was to facilitate the solution of disputes by elucidating the facts by means of an impartial and conscientious investigation. The report of a commission was to be limited to fact-finding and was not expected to include any proposal for the settlement of the dispute in question. With the establishment of the League of Nations, the means of inquiry took on a new significance. Inquiry and conciliation were viewed as integral parts of a single process for bringing about a pacific settlement to a dispute. It is in the light of this background that the Charter of the United Nations specifically lists “enquiry” as one of the methods of pacific settlement of international disputes. Enquiry as a separate method of dispute settlement has fallen out of favor. It has been used as part of other methods of dispute settlement. Its purpose is to produce an impartial finding of disputed facts and thus to prepare the way for settlement of dispute by other peaceful methods. The parties are not obliged to accept the findings of the enquiry; however, they always do accept them. The utilization of enquiry has been evident in the practice of international organizations, such as the United Nations and its specialized agencies. Enquiry has been used as part of other methods of dispute settlement in the context of general fact-finding ( Goodrich,L . 1955). 2.1.1.1. Mediation: Use of an independent, impartial, and respected third party (called the conciliator or mediator) in settlement of a dispute, instead of opting for arbitration or litigation. Unlike an arbitrator, a mediator has no legal power to force acceptance of his or her decision but relies on persuasion to reach an agreement. Also called conciliation. Mediation''' is a dynamic, structured, interactive process where a neutral third party assists disputing parties in resolving conflict through the use of specialized communication
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